ABDUL-QAWIY v. NATIONAL RAILROAD PASSENGER CORP.

The opinion of the court was delivered by: HENRY KENNEDY JR., District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Waleed Abdul-Qawiy ("Abdul-Qawiy"), brings this
action against defendants, National Railroad Passenger
Corporation ("Amtrak"), United Transportation Union ("UTU"), and
United Transportation Union Local 1933 ("Local 1933"), alleging
that Amtrak illegally terminated his employment based solely upon
alleged work-related injuries and that this termination violated
the terms of a collective bargaining agreement, the Railway Labor
Act, 45 U.S.C. §§ 151 et seq., the Federal Employer's Liability
Act, 45 U.S.C. §§ 51, et seq., the public policy of the
District of Columbia, and various constitutional provisions.
Presently before the court is Amtrak's motion to dismiss Counts
Two, Three, and Four of Abdul-Qawiy's complaint [#5]. Amtrak
argues that these counts are preempted by the exclusive arbitral
provisions of the Railway Labor Act, or, in the alternative, that
Counts Three and Four fail to state a claim upon which relief may
be granted. Upon consideration of the motion, the opposition
thereto, and the record of this case, the court concludes that
the motion should be granted in part and denied in part. I. BACKGROUND INFORMATION

The facts and allegations of this case pertinent to the motion
before the court are as follows. Defendant Amtrak is a common
carrier subject to the provisions of the Railway Labor Act,
45 U.S.C. §§ 151 et seq. On or about July 3, 2002, Amtrak hired
Abdul-Qawiy as an Assistant Passenger Conductor. The terms and
conditions of Abdul-Qawiy's position were governed by a
collective bargaining agreement between Amtrak and UTU.*fn1
Under the agreement, new conductors are subject to a ninety-day
probationary period. If the employee does not meet with
disapproval during the probationary period, his application is
considered approved. Additionally, the agreement requires that no
employee shall be dismissed without a fair and impartial hearing.

On July 8, 2002, Abdul-Qawiy began an eight-week training
course for new employees, which was successfully completed on or
about September 3, 2002. Abdul-Qawiy alleges that his employment
began, for purposes of the collective bargaining agreement, on
July 8, 2002 when he reported to his first day of training.
Therefore, according to Abdul-Qawiy, the 90-day probationary
period under the collective bargaining agreement ended, and
Abdul-Qawiy became a permanent employee, on October 6, 2002.
Defendants, however, assert that Abdul-Qawiy's employment did not
begin until after the training course was completed on
September 3, 2002, and therefore Abdul-Qawiy never became a
permanent employee.

Abdul-Qawiy alleges that he became a member of Local 1933 on or
about October 1, 2002, that Amtrak deducted union dues from his
paycheck and forwarded the payments to Local 1933, and that he is still a current union member in good
standing. UTU and Local 1933 deny that Abdul-Qawiy is currently a
member of the union, averring that all union dues were mistakenly
deducted from Abdul-Qawiy's paycheck and have since been
refunded.

On or about October 7, 2002, Abdul-Qawiy injured his arm while
lifting passengers' luggage. He claims that he was not provided
with proper lifting equipment and that he was instructed to lift
luggage that was too heavy to be lifted safely. Abdul-Qawiy also
claims that he was required to open and close train doors, some
of which were defective and therefore difficult to open. After
Abdul-Qawiy reported his injury to his supervisor, he was
instructed to go to the hospital. Amtrak paid for Abdul-Qawiy's
hospital visit. The following day, the chairman of Local 1933,
Ray Cunningham, informed Abdul-Qawiy that he was terminated
without reason because Amtrak had decided not to make him a
permanent employee. Abdul-Qawiy petitioned his union
representative to intercede with Amtrak on his behalf. Local
1933, however, agreed with Amtrak that Abdul-Qawiy was still a
probationary employee and was therefore entitled to neither a
hearing nor union representation.

Abdul-Qawiy alleges that he hired an attorney to persuade
Amtrak and the union to give him a hearing, as he claims is
required under the collective bargaining agreement. Abdul-Qawiy
further alleges that he repeatedly attempted to contact both
Amtrak and the union from late 2002 until June 2003, but that
neither was responsive. On June 22, 2004, Abdul-Qawiy initiated
the present action alleging that: (1) Amtrak breached the Federal
Employer's Liability Act; (2) Amtrak breached the collective
bargaining agreement; (3) Amtrak wrongfully discharged
Abdul-Qawiy in violation of the common law and statutes of the
District of Columbia; (4) Amtrak violated Abdul-Qawiy's constitutionally protected property
interests; (5) UTU and Local 1933 breached their duty of fair
representation; and (6) UTU and Local 1933 breached their
contractual relationship with Abdul-Qawiy.

II. ANALYSIS

In moving to dismiss Counts Two, Three, and Four of
Abdul-Qawiy's complaint, Amtrak essentially makes two arguments.
First, it argues that these counts are preempted by the Railway
Labor Act, 45 U.S.C. §§ 151 et seq. Second, Amtrak contends
that Counts Four and Five fail to state a claim upon which relief
can be granted.

A. Federal Preemption

1. Legal Standard

While Amtrak grounds its motion on Fed.R.Civ.P. 12(b)(6)
motion, its preemption argument actually challenges this court's
subject matter jurisdiction with respect to some of Abdul-Qawiy's
claims. A motion to dismiss for lack of subject matter
jurisdiction, which is properly considered under Fed.R.Civ.P.
12(b)(1), should not be granted "unless plaintiffs can prove no
set of facts in support of their claim which would entitle them
to relief." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994); Beverly Enters., Inc. v. Herman,
50 F. Supp. 2d 7, 11 (D.D.C. 1999). Additionally, at the dismissal stage, the
plaintiff's complaint must be construed liberally, and the
plaintiff should receive the benefit of all favorable inferences
that can be drawn from the alleged facts. See EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997). 2. Plaintiff's Preemption Argument

In enacting the Railway Labor Act, Congress sought to promote
stability in labor-management relations by "providing a
comprehensive framework for the resolution of labor disputes in
the railroad industry." Atchison, Topeka & Santa Fe Ry. Co. v.
Buell, 480 U.S. 557, 562 (1987). To do so, the Act provides for
mandatory grievance procedures to resolve certain labor disputes,
commonly referred to as "minor disputes." "Minor" disputes stem
from the interpretation or application of an existing collective
bargaining agreement and are distinguished from "major" disputes,
which arise from the formation or change of a collective
bargaining agreement. Consolidated Rail Corp. v. Ry. Labor
Executives Ass'n, 491 U.S. 299, 302-07 (1989). When a minor
dispute arises, labor and management must submit to binding
arbitration before the National Railroad Adjustment Board (or an
adjustment board established by the parties). 45 U.S.C. § 153
First (i). The jurisdiction of the Adjustment Board over minor
disputes is exclusive, subject to limited judicial review.
Consolidated Rail, 491 U.S. at 304.

Not all claims arising out of an employment-related dispute are
preempted by the Act, however. Rather, only those state-law
claims that require an interpretation of the collective
bargaining agreement itself are preempted. In discussing the
scope of federal preemption under an analogous statute, the
Supreme Court has held that "if the resolution of a state-law
claim depends upon the meaning of a collective bargaining
agreement, the application of state law (which might lead to
inconsistent results since there could be as many state-law
principles as there are States) is pre-empted" and "the
interpretation of collective-bargaining agreements remains firmly
in the arbitral realm." Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 407, 411 (1998).*fn2 That said, whenever the "state law
claim can be resolved without interpreting the agreement itself,
the claim is `independent' of the agreement" for preemption
purposes. Id. at 410; see also Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 256 (1994) (holding that the Railway Labor
Act's "mechanism for resolving minor disputes does not pre-empt
causes of action to enforce rights that are independent of the
[collective bargaining agreement]").

Amtrak argues that Abdul-Qawiy's "breach of contract, wrongful
discharge and property interest claims all allege that Amtrak
interfered with his rights under the [collective bargaining
agreement] by failing to provide him with certain procedural
rights required under [the rules of that agreement]." Def.'s Mot.
at 9. Because these claims therefore "require[] analysis of the
[collective bargaining agreement] and employee's rights under
it," Amtrak contends they are preempted by the Railway Labor Act.
Id. In opposition, Abdul-Qawiy argues that neither his wrongful
discharge nor his property interest claim is preempted.
Abdul-Qawiy further argues that, even if his claims are
preempted, he was nonetheless not required to grieve his
termination under one of the recognized exceptions to the Railway
Labor Act's mandatory arbitration provisions. The court will now
analyze whether each of Abdul-Qawiy's claims are preempted by the
Railway Labor Act.

a. Breach of Contract Claim

Count Two of Abdul-Qawiy's complaint is a state-law breach of
contract claim against Amtrak. The contract allegedly breached is
the collective bargaining agreement, which, according to Abdul-Qawiy, created "a contractual duty" for Amtrak
"to terminate plaintiff only for cause and only after a fair and
impartial hearing." Compl. ¶¶ 28-30. A determination of this
claim will necessarily require this court to reference and
interpret the collective bargaining agreement itself.
Accordingly, Abdul-Qawiy's breach of contract claim is a "minor
dispute" preempted by the Railway Labor Act and subject to its
arbitration procedures.*fn3

That Abdul-Qawiy's breach of contract claim is a minor dispute,
subject to the arbitration provisions of the Railway Labor Act,
does not necessarily preclude this court from entertaining
jurisdiction over it. Abdul-Qawiy contends that four exceptions
to the general rule that a federal court cannot entertain
jurisdiction over preempted claims apply to his contract claim
against Amtrak. These exceptions apply: (1) when the employer
repudiates the private grievance machinery, Vaca v. Stipes,
386 U.S. 171, 185 (1967); (2) when resort to administrative remedies
would be futile, Glover v. St. Louis-San Francisco Ry. Co.,
393 U.S. 324, 330 (1969); (3) when the employer is joined in a duty
of fair representation claim against the union, Richins v.
Southern Pacific Co., 620 F.2d 761, 762 (10th Cir. 1980); and
(4) when, because of a breach of the duty of fair representation
by the union, the employee loses the right to grieve before the
Arbitration Board, Childs v. Pa. Fed'n Bhd. of Maint. Way
Employees, 831 F.2d 429 (3d Cir. 1987). See also Sisco v.
Consolidated Rail Co., 732 F.2d 1188, 1190 (3d Cir. 1984)
(citations omitted) (summarizing exceptions); Martin v. American
Airlines, Inc., 390 F.3d 601, 608-10 (8th Cir. 2004) (same). None of the exceptions apply in
Abdul-Qawiy's case, and therefore jurisdiction over his
contractual claim against Amtrak is lacking.*fn4

The first exception  repudiation of the grievance procedure by
the employer  does not apply because Abdul-Qawiy never alleged
that he exercised his statutory right, under 45 U.S.C. First (j),
to petition the Adjustment Board directly without the aid of the
union. While he claims that both the union and the railroad were
unresponsive to his requests for a due process hearing, Compl. ¶¶
18-19, and that the union refused to assist him with filing a
complaint, id. ¶ 20, Abdul-Qawiy never alleges that he actually
filed a grievance with the Board on his own behalf. Because
Abdul-Qawiy had the right under the Railway Labor Act to do so
and opted not to, the court cannot conclude that any failure of
the grievance machinery was the result of Amtrak's actions. See
Childs, 831 F.2d at 438 (holding that failure of an employee to
petition the Adjustment Board directly negates any allegation
that the grievance procedure was repudiated by the employer).

Abdul-Qawiy argues that the second exception applies because it
would have been futile for him to instigate the grievance
procedures directly. This is so, he argues, because if he sought
arbitration without the support of the union, "he risked the
union's ire and the loss of his champion." Pl.'s Opp'n at 5. This
allegation, however, does not support the conclusion that seeking
arbitration would have been futile. Any allegation that the union
would be upset by Abdul-Qawiy's use of his statutory right to
press his claims directly, even if true, falls short of establishing that the Arbitration Board would therefore have
refused to provide the relief that Abdul-Qawiy seeks. Absent such
an allegation, the court cannot conclude that arbitration would
have been futile.

With respect to the third exception, courts have noted that "an
employer may be joined in a duty of fair representation action
against the union if facts are alleged tying the employer to the
events complained of." Sisco, 732 F.2d at 1190; see also Raus
v. Bhd. Ry. Carmen, 663 F.2d 791, 798 (8th Cir. 1981) (holding
that collusion or some similar nexus between the union and the
employer must be present to invoke this exception). Although
Abdul-Qawiy's complaint suggests that the union "colluded" with
Amtrak to accomplish his discharge, Compl. ¶ 34, he fails to
allege any facts to support this charge. Such a conclusory
statement, wholly unsupported by factual allegations in the
complaint, is insufficient to connect Amtrak to the union's
alleged breach of its duty of fair representation. Kowal,
16 F.3d at 1276 ("[T]he court need not accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts set
out in the complaint."). Abdul-Qawiy, therefore, fails to meet
the necessary requirements to invoke jurisdiction by way of this
exception.

A fourth, and final, exception exists when a duty of fair
representation claim is brought against a union and the employee
claims that he lost his right to press his grievance before the
Adjustment Board because of this breach. In such a case, a court
is permitted to entertain jurisdiction over the contract claims,
despite the fact that they would normally be arbitrated. See,
e.g., Childs, 831 F.2d at 438-441 (3d Cir. 1987); Kaschak v.
Consolidated Rail Corp., 707 F.2d 902, 905-910 (6th Cir. 1983);
Schum v. South Buffalo Ry. Co., 496 F.2d 328, 330-32 (2d Cir. 1974).*fn5 In order to invoke this exception, there is a
"heavy burden" on the plaintiff to show "that the union's breach
of its duty of fair representation precluded his recovery from
the railroad, and that his reliance on the union was reasonable."
Childs, 831 F.2d at 441; Kaschak, 707 F.2d at 913.
Abdul-Qawiy's complaint fails to meet this "heavy burden"; he
never alleges that he lost any rights he had because of the
union's alleged breach nor that any recovery was precluded as a
result. All he alleges is that the union failed to file a
complaint on his behalf and therefore "permitted the time for
demanding a claim to lapse." Compl. ¶ 42. However, Abdul-Qawiy
acknowledges that the union informed him of their refusal to file
a claim. Id. Consequently, the court cannot conclude that
Abdul-Qawiy's reliance on the union to file his grievance was
reasonable, particularly given the fact that the RLA explicitly
allows an employee to begin the grievance process directly
without aid of the union.

In sum, Abdul-Qawiy's complaint fails to establish that any of
the exceptions to Railway Labor Act preemption apply in this
case. Absent a showing that an exception applies, resolution of
Abdul-Qawiy breach of contract claim lies within the jurisdiction
of the Adjustment Board. Accordingly, dismissal of this claim is
appropriate.

b. Wrongful Discharge Claim

Count Three alleges that Amtrak's decision to terminate
Abdul-Qawiy was wrongful because it was based solely on his "work
related injuries in violation of the laws of the District of Columbia and against public policy." Id. ¶ 32. Amtrak argues
that a state-law claim for wrongful termination is preempted
under the Railway Labor Act, citing Andrews v. Louisville &
Nashville Ry Co., 406 U.S. 320 (1972). In Andrews, the Supreme
Court began by noting that wrongful discharge claims, to be
valid, must rely upon "some sort of statutory or contractual
standard that modifies the traditional common-law rule that a
contract of employment is terminable by either party at will."
Id. at 324. Because, in Andrews, the "only source for
petitioner's right not to be discharged [was] the
collective-bargaining agreement," the Court concluded that the
claim was preempted by the Railway Labor Act. Id. Andrews is
distinguishable from the case here. Here, unlike in Andrews,
Abdul-Qawiy does not rely upon the collective bargaining
agreement for his right not to be discharged. Rather, he cites
"the laws of the District of Columbia" and "public policy" as the
source of such a right. Compl. ¶ 32. Because Abdul-Qawiy does not
rely upon the bargaining agreement, the wrongful discharge claim
is independent of that agreement and is therefore not preempted.
See Lingle, 486 U.S. at 410.

c. Due Process Claim

Finally, Count Four of Abdul-Qawiy's complaint alleges that
Amtrak violated Abdul-Qawiy's constitutional rights and property
interest in his employment at Amtrak. Compl. ¶¶ 36-37.
Abdul-Qawiy looks to the Fifth and Fourteenth Amendments to the
U.S. Constitution to support this allegation. Id. As above,
Amtrak argues that the Railway Labor Act preempts these
constitutional claims. The court disagrees. In a similar case, the Supreme Court held that the Railway
Labor Act's binding arbitration provisions did not deprive a
district court of the jurisdiction to hear an employee's claim
for personal injuries arising under the Federal Employers'
Liability Act. Buell, 480 U.S. at 564-65. In so holding, the
Supreme Court noted that the Railway Labor Act did not preempt
other federal statutes that provide rights outside the scope of
those covered by the Act. Id. at 565 ("[N]otwithstanding the
strong policies encouraging arbitration, different considerations
apply where the employee's claim is based on rights arising out
of a statute designed to provide minimum substantive guarantees
to individual workers.") (internal quotations and citations
omitted). Given that the Supreme Court has determined that relief
under federal statutes distinct from the Railway Labor Act is not
preempted by that Act, the court finds it difficult to perceive
why constitutional claims should be treated differently. See
Coppinger v. Metro-North Commuter R.R., 861 F.2d 33, 37 (2d Cir.
1988) ("[W]e are persuaded that there is no principled basis upon
which to distinguish [the plaintiff's constitutional claims] from
the FELA issue in Buell."). This is particularly so given the
Supreme Court's holding that, "where Congress intends to preclude
judicial review of constitutional claims its intent to do so must
be clear." Webster v. Doe, 486 U.S. 592, 603 (1988) (citing
Johnson v. Robison, 415 U.S. 361 (1974)). Congress did not
evidence such a purpose in the Railway Labor Act. Coppinger,
861 F.2d at 37. In light of these precedents, the court is
compelled to conclude that Abdul-Qawiy's constitutional claim
remains properly in federal court.

B. Dismissal for Failure to State a Claim

Amtrak also moves for dismissal under Fed.R.Civ.P. 12(b)(6)
contending that both Counts Three and Four fail to state a claim
upon which relief may be granted. Under 12(b)(6), dismissal is appropriate "only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Martin v. Ezeagu,
816 F. Supp. 20, 23 (D.D.C. 1993) (internal quotations omitted); see
Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (stating that a
complaint should not be dismissed "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief"). In addition, the court
must construe the complaint in a light most favorable to the
plaintiff and must accept as true all reasonable factual
inferences drawn from well-pleaded factual allegations. In re
United Mine Workers of Am. Employee Ben. Plans Litig.,
854 F. Supp. 914, 915 (D.D.C. 1994); see Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979) (stating that the court must give
the plaintiff "the benefit of all inferences that can be derived
from the facts alleged"). In evaluating a motion to dismiss, the
court is limited to considering facts alleged in the complaint,
any documents either attached to or incorporated in the
complaint, matters of which the court may take judicial notice,
St. Francis Xavier Parochial Sch., 117 F.3d at 624, and matters
of public record, Marshall County Health Care Auth. v. Shalala,
988 F.2d 1221, 1226 n. 6 (D.C. Cir. 1993). Factual allegations in
briefs or memoranda of law may not be considered when deciding a
motion to dismiss, particularly when the facts they contain
contradict those alleged in the complaint. Henthorn v. Dep't of
Navy, 29 F.3d 682, 688 (D.C. Cir. 1994).

1. Wrongful Discharge

Abdul-Qawiy alleges that he was wrongfully discharged from
employment with Amtrak because his termination was based solely
on an alleged work-related injury. In support of this claim,
Abdul-Qawiy asserts that his termination violated "the statutes
and the common law of the District of Columbia" and was against public policy. Compl. at ¶
35.*fn6 Amtrak contends that Abdul-Qawiy's complaint is
"devoid of any allegation sufficient to meet the requirements of
a public policy exception to the at-will doctrine" that governs
employment relationships in the District of Columbia. Def.'s Mot.
at 11. In light of this purported failure, Amtrak urges the court
to dismiss Abdul-Qawiy's wrongful discharge claim.

District of Columbia law has long recognized the at-will
employment doctrine, which states that "an employer may discharge
an at-will employee at any time and for any reason, or for no
reason at all." Adams v. George W. Cochran & Co., 597 A.2d 28,
30 (D.C. 1991). In Adams, however, the D.C. Court of Appeals
recognized an intentional tort for wrongful discharge, holding
that "there is a very narrow exception to the at-will doctrine
under which a discharged at-will employee may sue his or her
former employer for wrongful discharge when the sole reason for
the discharge is the employee's refusal to violate the law, as
expressed in a statute or municipal regulation." 597 A.2d at 34.
The court later clarified, in Carl v. Children's Hosp.,
702 A.2d 159, 160 (D.C. 1997) (en banc), that the "`very narrow
exception' created in Adams should not be read in a manner that
makes it impossible to recognize any additional public policy exceptions to the at-will doctrine that may warrant recognition."
Under Carl and subsequent case law, requests to recognize
additional public policy exceptions to the at-will employment
doctrine should be addressed on a case-by case basis pursuant to
the following instructions:

The court should consider seriously only those
arguments that reflect a clear mandate of public
policy  i.e., those that make a clear showing, based
on some identifiable policy that has been "officially
declared" in a statute or municipal regulation, or in
the Constitution, that a new exception is needed.
Furthermore, there must be a close fit between the
policy thus declared and the conduct at issue in the
allegedly wrongful termination.

Id. at 164 (Terry, J., concurring) (footnotes omitted); accord
Liberatore v. Melville Corp., 168 F.3d 1326, 1331 (D.C. Cir.
1999) (stating that "the effective holding of the en banc court"
in Carl was that circumstances other than an employee's
outright refusal to violate a law can constitute grounds for a
public policy exception if "solidly based on a statute or
regulation that reflects the particular public policy to be
applied").

Here, Abdul-Qawiy argues that the Federal Employers' Liability
Act ("FELA"), 45 U.S.C. §§ 51, et seq., evinces a public policy
against terminating an employee solely because that employee is
injured during the course of his employment. This federal
statute, he argues, provides the firm footing upon which a new
exception to the at-will doctrine should be based. The court
cannot agree.

Congress passed FELA in 1908 to assure railroad employees a
safe workplace and to provide the right to recover compensation
if injured in a railroad related accident. The purpose of FELA,
is not, as Abdul-Qawiy suggests, to protect injured employees
from being terminated. Rather, as the First Circuit has stated,
the "obvious purpose" of FELA is to "is to enlarge the remedy of
railroad employees injured as a result of hazards incident to
their work." Metropolitan Coal Co. v. Johnson, 265 F.2d 173, 178 (1st Cir. 1959). In
fact, there is no provision in FELA that makes it unlawful for a
railroad to terminate an employee because that employee was
injured while on the job.*fn7 Nor are the purposes of FELA
impeded by the fact that an employee is terminated; a terminated
employee is still free to seek compensation for his injuries
under FELA. As such, FELA cannot be deemed to "clearly reflect" a
policy against terminating injured employees. Abdul-Qawiy
reliance on FELA is therefore misplaced and his attempts to have
this court recognize a new exception to the at-will employment
doctrine must be rejected. Having failed in this task, his
wrongful termination claim must be dismissed for failure to state
a claim upon which relief may be granted.

2. Due Process Claim

In Count Four, Abdul-Qawiy claims that he has a property
interest in continued employment with Amtrak, which was deprived
when "Amtrak terminated [him] and then conspired with UTU and
Local 1933 to deny him his appeal rights." Compl. ¶ 37.*fn8
In response, Amtrak argues that this count fails to state a claim
upon which relief may be granted, primarily because Abdul-Qawiy
was allegedly an untenured employee who lacked a property
interest in his continued employment. Abdul-Qawiy's constitutional due process claim turns on whether
he had a property interest in continued employment. Bd. of
Regents v. Roth, 408 U.S. 564, 576-78 (1972); Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 538 (1985). If he did, then
Amtrak could not deprive him of this interest without due process
of law. Loudermill, 470 U.S. at 538. To determine whether
Abdul-Qawiy had a property interest in continued employment, the
court must ask whether "he had a legitimate expectation based on
. . . understandings (contract, express or implied), that he
would continue in his job." Hall v. Ford, 856 F.2d 255, 265
(D.C. Cir. 1988).

Abdul-Qawiy alleges in his complaint that, under the collective
bargaining agreement, a railroad employee becomes a permanent
employee of the railroad ninety days after he begins work, Compl.
¶ 9, and that permanent employees may not be terminated without a
fair and impartial hearing, id. ¶ 10. He further alleges that
he began work on July 8, 2002. Id. ¶ 11. Therefore, according
to Abdul-Qawiy, he became a permanent employee on October 6,
2002, and, at that point, was subject to procedural protections
under the collective bargaining agreement. Id. ¶ 13. It is a
reasonable inference from these allegations  which the court
must accept as true  that Abdul-Qawiy had a legitimate
expectation that he would continue in his job as of October 8,
2002, the date that he was terminated. The court, therefore,
finds that Abdul-Qawiy has pled his due process claim
sufficiently to survive a 12(b)(6) motion and, accordingly,
denies Amtrak's motion in that respect. CONCLUSION

Accordingly, it is this 25th day of October, 2005, hereby

ORDERED, that Amtrak's motion to dismiss is GRANTED with
respect to Count Two (Breach of Contract) and Count Three
(Wrongful Discharge) of Abdul-Qawiy's complaint and DENIED with
respect to Count Four (Due Process).

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